Access to Information and Plain Language

CHAPTER 20

The public's ability to have ready access to the civil justice system is
affected not only by factors such as cost and delay but also by its
ability to comprehend the process. Lack of understanding and knowledge
lead to misunderstanding and a sense of alienation from the process.

The law is complex and the processes which must be followed to obtain
redress under the law can be even more so. Information about the law and
its and procedures, and about the range of dispute resolution options
that exist, needs to be as readily available and as easily understood as
is practicable in a complex society. Meaningful access to civil justice
will never be a true reality unless this is so.

While the inherently complex nature of the law -- which must seek to
govern the full array of society's infinitely complex human relations --
may normally require an individual to seek professional advice, we were
told repeatedly by lawyers, as well as the public, that the civil justice
system is too complex.

Members of the general public are perhaps less informed about aspects of
the civil law and procedure than they are about criminal proceedings,
which enjoy greater coverage in the media. Public perceptions of the
civil justice system are also coloured by distorted or inaccurate
presentations of court proceedings that are depicted in films or
television programs. Currently, civil law courses are offered only on a
voluntary basis in Ontario High Schools. At the University level, law
courses are primarily reserved to law students. As a result, many members
of the public grow into adulthood with very little information about the
justice system, and about the civil justice system in particular.

The need of members of the public to know about civil justice matters
often arises only when they have occasion to become involved in a matter
which forces them into it. At that point, the immediate pressures of the
dispute and the litigation surrounding it tend to fashion their views and
impressions of the system. Frequently, because of the personal, emotional
and financial pressures which characterize the circumstances, those views
and impressions are not positive. With little general knowledge or
appreciation of the system, and no overall perspective, negativism easily
becomes the prevailing attitude toward it. The administration of justice
suffers, as a result.

We believe that there is a growing need in society for an educational
foundation that includes more exposure to civics and to the purposes and
processes of the civil justice system and the values underlying it.

RECOMMENDATION

We recommend that the Ministry of Education, elementary and secondary
schools, universities and community colleges play a greater role in the
education of the public with respect to the purpose, values and processes
of the civil justice system.

Some information is available to the public.

The Ministry of the Attorney General provides a number of pamphlets and
brochures, but these tend to be limited in their scope. The most well
received of these in an informative booklet dealing with Small Claims
Court matters. We see no reason why such a brochure could not be
duplicated and made available for General Division matters.

The Law Society offers a number of brochures -- including one about how
to retain a lawyer -- and a Dial-a-Law program which provides information
on a number of legal services. Statutes and other legal publications can
be purchased at government book stores, where these exist. There is an
apparent lack of co-ordination of these activities, however. For
instance, the Law Society brochures are not available at courthouses
throughout the Province. There is no common source of information.

We are concerned about the lack of available information, published in
plain language and a format that a layperson can understand, which will
assist the public in appreciating how the courts work, how to proceed
with a case in the Ontario Court of Justice (General Division), how to
find and retain a lawyer, and how to do anything that relates to the
justice system.

In our opinion, there is a need to keep the process as simple as possible
and, just as importantly, to offer information in plain language about
the process of civil justice, about how to obtain the necessary
assistance to use the process, and about the spectrum of dispute
resolution options which are available to help individuals resolve their
problems.

For matters involving small claims, the Ministry of the Attorney General
has published a brochure entitled "How to Make Small Claims Court Work
for You". It is a straightforward step-by-step guide to making or
responding to a claim, written in plain language, containing simple
answers to obvious questions like how to obtain an adjournment, what to
do when arriving in court, and options regarding enforcement. In Small
Claims Court matters, court staff are permitted to provide assistance to
the public concerning the "how to's" and other related matters. They are
not permitted to do so in General Division matters. This can lead to the
absurd situation where two people standing at a court counter
side-by-side -- one with a claim for $5,999 (just below the Small Claims
Court limit) and one for a claim of $6,001 (just above the limit) --
receive different treatment. As well as causing embarrassment and
difficulty for the court staff, this sort of situation simply adds to the
frustration of the public and leads to their further disenchantment with
what is supposedly their system of civil justice.

The culture of the courts must change to reflect the principle of
service. The public, which funds the system with hard-earned tax dollars
and pays hefty legal and court fees, has a fundamental right to access to
it in a timely, affordable and comprehensible manner. People should not
be intimidated by the court system. They need to understand it. Language
needs to be simplified and information about the process made more easily
available.

RECOMMENDATION:

We recommend that community based information services be developed
through a partnership between the bar, the Ministry and legal clinics.
The information available should be in "plain language" which is readily
understood by general members of the public, and it should be available
in a variety of forms -- e.g. written brochures and materials,
interactive computer terminals, video cassettes and audio formats -- in
order to facilitate a broad distribution of information in locations
other than courthouses and at times other than regular office hours.

The Ontario Government has recently announced a customer service
initiative to develop a self service kiosk network across the province.
It is intended to be an alternative delivery channel for clients wishing
to access government products and services. These kiosks will be
primarily located in shopping malls and busy government offices in the
more densely populated areas of the province. This network could be used
to deliver a variety of legal information services.

RECOMMENDATION:

We recommend that the Ministry participate in the Ontario Government's
Kiosk Program as a method of disseminating information about legal
processes more broadly to the public.

In Small Claims Court, in Provincial Division Family Law Proceedings and
in Landlord and Tenant matters, proceedings are commenced through the use
of generic "fill-in-the-blank" forms. Court staff in these court
locations are generally available to provide information and assistance
to the public in completion of the forms.

As we noted in Chapter 14 of this Report dealing with the Rules of Civil
Procedure, the Rules which govern proceedings in the General Division are
designed to be read by professional users and are only available from
legal publishers at a significant cost. In General Division matters,
prescribed forms are not available to the public and can only be obtained
from legal stationers. This presents a barrier to litigants who wish to
represent or inform themselves. For those persons who are persistent and
can obtain a copy of the Rules, the language used is not designed for the
uninitiated -- as we have noted before.

It would be naive to suggest that the Rules of Civil procedure could be
readily transformed into a "do-it-yourself" manual. There nevertheless
must be better information for those who try to understand and make use
of the process.

RECOMMENDATION:

We recommend that legal forms for use in the General Division be made
available at court locations. In connection with this service, we
recommend as well the creation of a "plain language" guide to the steps
in a legal proceeding along the lines of the presently published Small
Claims Court guide.

As a result of the scarcity of available information, members of the
public are frequently forced to rely on court staff for free information.
Not infrequently, this places heavy demands on court staff to provide the
answers to the public's questions. Court staff can provide information
only but cannot provide legal advice, something only lawyers are
qualified and entitled to do. The distinction between information and
advice can often be a fine one, however, and may not be fully understood
by either the staff person or the customer. Along with alternate
information service models, better training for counter staff in making
these distinctions is required. Customer service initiatives are being
put into place in the Ministry of the Attorney General at this time.

RECOMMENDATION:

We recommend that, as part of the Ministry of the Attorney General's
customer service initiative, a guide for counter staff be developed to
clarify for them what is permissable information about the legal process
for them to impart to the public.

Access to court process information is an issue for the Bar in certain
respects, as well. We were advised, in particular, of problems arising
from inconsistent court practices from one location to the next.

There are undoubtedly valid reasons for some flexibility and adaptability
in procedures to respond to local requirements. On the other hand, it is
important for the court users -- both professional and unrepresented --
that there be as much consistency as possible across the Province. The
Bar was particularly critical of local variances in practice, emphasizing
the increased expense that must be borne by them and/or their clients
where a step in a proceeding is postponed or recommenced due to
non-compliance with an unknown local "rule".

There is a need for clear, and easily accessible, communication where
there are local variations in practice. The Bar and Court Administrators
expressed special concern with respect to practice directions, which in
the past have apparently been introduced by the Judiciary on a local
basis without prior consultation. To meet this concern, the Rules have
been amended to ensure that such directions are approved by the Chief
justice and that they do not to come into effect until published in the
Ontario Reports [169] . Ideally,
these practice directions should first be developed through discussions
at the local bench and bar committee level, with input from the court
staff.

It might be useful to track these local practice needs as they may be
symptomatic of deficiencies in the current rules. To ensure that there a
better awareness of these, they should be communicated to the Regional
Courts Management Advisory Committees.

RECOMMENDATION:

We recommend that Regional Senior Justices be careful to ensure that
local practice directions are put into place after appropriate
consultation with Bar and Courts Administration representatives, and in
accordance with the provisions of the Rules. In addition, copies of the
practice direction should be provided to the Regional Courts Management
Advisory Committees, to ensure broad publication and knowledge of their
contents.

We received very little commentary regarding the adequacy of French
language services in the court system. We note the requirement for these
provided in section 126 of The Courts of Justice Act . Every
litigant who speaks French is entitled to a bilingual proceeding and a
judge who speaks English and French. This Act also outlines the specific
counties, territorial districts, and regional municipalities in which
documents can be filed in either Official Language and in which jury
trials must be available in French and English. We are aware, however, of
the September 1994 report prepared by Professor Marc Cousineau for the
Ministry, entitled "The Use of French Within the Ontario Judicial System:
An Unrealized Right" and understand the concerns raised by that Report.
We hope to learn more about these important issues and to respond in our
Final Report.